Social Media is buzzing with conversations that Ghanaian musician-Ara B who took to Facebook last night to insult Shatta Wale’s wife-Shatta Michy has been arrested, for defaming or insulting Michy and her husband-Wale.

Though I do not totally believe this is the case, because no one should ever be arrested by the police in Ghana for defamation, I’ve decided to look at defamation and the associated remedies as provided by law to help settle the confusing surrounding the debate on social media.

First of all, if people are to be arrested for defamation or insulting others, then many of us would have been rotting in jail—for what we do seems to bother on such conducts, at least to those we write about.

Before 2001, defamation was a criminal offence in Ghana—which meant that you could be arrested and imprisoned for defaming another. Journalists such as Kwaku Baako and the others suffered under this draconian and absurd legislation.

In July 2001, Ghana’s parliament unanimously repealed the Criminal Libel and Seditious Laws, which had been used to incarcerate a number of journalists in the past, according to the West African Journalists Association (WAJA).

Since July 2001, Ghana joined the many democratic countries such as United Kingdom, United State, Canada, Germany and others by making defamation a sole civil wrong, with only civil remedies.

If you are wondering what defamation is even at this stage, let me try and quickly run through that for you by borrowing paragraphs from an article I wrote a few years ago—and then move on to the substantive issue here.

“According to the English case of Sim v Stretch, defamation is a false statement of fact that exposes a person to hatred, ridicule, contempt or which tends to lower him in the esteem of right-thinking persons of society.

Based on the above, statements that are merely offensive, such as, Nadia Buari smells badly will not be sufficient to be termed as defamatory.

Similarly, opinions can never be defamatory and therefore if someone says, Kwabena Kwabena is the most useless Ghanaian musician—-that can never be defamatory in law…This will be just as saying; President [Trump] is the worst president America has ever had—-opinion.

It must be noted that merely labelling a statement as an opinion does not mean it will be considered as an opinion. Courts look at the whole statement to establish if a reasonable reader/listener will consider the statement to be an opinion or a statement of fact. Since opinions cannot be established to be true or false, defamation cannot spring out of that—after all, defamation rides on the concept of a false statement of fact.

It is worth mentioning that, statements like a person is a “Dumb Ass,” even first among “Dumb Asses,” communicates no factual proposition susceptible of proof or refutation. It is true that “dumb” by itself can convey the relatively concrete meaning “lacking in intelligence.” Nevertheless, the absence of the ability to proof any factual preposition in this phrase will definitely make it a herculean task when a person wants to proof defamation based on it.

When it comes to defamation, Courts take into account a whole publication to establish if a person has been defamed or not. This means that headlines alone cannot fully be relied on for defamation. It can be the starting point, but the context of the entire article or publication must be considered.

Defamation in relation to celebrities/public figures

As mentioned above, statements that will pass for defamation if said about ordinary people may not necessary be accepted by Courts as defamatory when said to celebrities/public figures.

When it comes to defamation in relation to ordinary members of the society, the person making the defamatory claim must prove that;

There has been a publication.

The publication is a false statement of fact (not an opinion)

And the statement harms the reputation of the person making the claim.

However, when it comes to public figures or celebrities, a 4th and difficult hurdle must be jumped. The celebrity/public figure must prove ACTUAL MALICE in addition to the above.

By ACTUAL MALICE, the celebrity/public figure must show that, the person who made the publication knew of the falsity of the publication at the time of the publication, or he recklessly disregarded the truth.

Unlike ordinary citizens where the person claiming defamation will only need to show that the publisher acted negligently, meaning, a “reasonable person” would not have published the defamatory statement—-celebrities must show ACTUAL MALICE.

Defamation Per Se

Though public figures must show ACTUAL MALICE when it comes to defamatory claims, there are certain false statements of fact which are innately harmful, therefore, when published about public figures (or ordinary citizens), the publisher becomes ‘automatically’ liable for defamation.

These statements include;

Publications or imputations “injurious to another in their trade, business, or profession”

Publications or imputations “of loathsome disease” such as leprosy and s*xually transmitted disease.

Publications or imputations of “unchastity” (usually only in unmarried people and sometimes only in women)

Publications or imputations of criminal activity (sometimes only crimes of moral turpitude will pass)

The importance of context cannot be forgotten when it even comes to defamation per se. If you publish a statement that Jackie Appiah talks like an ” ignorant sl*t,” it may imply a want of chastity on Jackie Appiah’s part. But contextually, you may be able to convince a Court that the above statement is not defamation per se, rather, it falls within the usual hyperbole and pop cultural slang, and not a false statement of fact.”

Ara B’s post

Now that you understand what defamation is, let’s assume everything the musician-Ara B said about Shatta Wale’s wife amount to defamation. Even that, his action/statement wouldn’t be criminal—and the police cannot get involved.

At best, Shatta Wale and his wife can sue him for damages—asking a court to award them compensation for the reputational damage and seek other civil remedies such as retraction, apology or any that would be within the civil powers of the court.

No one should be arrested for insulting or defamation another in Ghana—the law is clear on this and therefore if indeed Ara B has been arrested by the police, then it’s an assault on the principles of the law of rule, a disgrace to our democracy.

I am somewhat compelled to believe the social media rumours owning to the fact that, though ordinary debt is a civil issue, a lot of people get arrested by the police for owning others—which shouldn’t be the case.

It’s pathetic but this is Ghana where money seems to easily buy the law and parliamentarians are on the neck of each other over bribery scandal in the house of parliament.

Chris-Vincent Agyapong Febiri, who looks at these issues holds a masters degree in International Human Rights (LL.M), holds a degree in Law (LL.B), and he’s currently at Nottingham Law School, studying for his Legal Practice Course (with a second masters degree in Legal Practice) to practise as a UK Solicitor.

He also has extensive knowledge and interest in celebrity lifestyle & social media.